Recently PCS was contacted by 2 unrelated practices dealing with potential substance abuse issues. Our advice to them could be helpful in general.
The first step is to make sure that there is evidence to take additional steps. Doctors/managers should carefully monitor the suspected employee. But this has to be done correctly. Any suspicions or actually observed abuse should be properly documented.
Employee Record Documentation
Just like we were taught in optometry school, If it is not written down, it is assumed it was not done. How much documentation is enough? The following suggestions should help you understand what should be included in employee records and how it should be documented.
- Established clear office policy.
- Review problem behavior before it becomes the norm.
- Eliminate all bias and potential discrimination. Do not embellish, speculate, or discuss actions not substantiated by fact.
- Do not use generalizations – be specific.
- Do not attempt to psychoanalyze the employee.
- Do not try to justify your actions. The written, established policy is all the justification you should need.
- Be careful not to accuse an employee of moral issues unless the documented facts are clear.
- Never apologize for your actions. Rules are rules and if you are being fair and consistent in the application of those rules, you have nothing to apologize for.
- Unless the employee is being terminated, always develop an action plan to remedy the situation and provide a set time for follow-up and re-evaluation of the situation.
In clear cases of substance abuse, the facts of the incident should be documented, and the employee immediately terminated.
Employee Surveillance
Surveillance tends to carry a negative tone for most employees but does not have to. Active surveillance typically means video or audio monitoring of employee activities while they are at work. Video or audio monitoring of employees is usually legal as long as the employee knows they are being monitored but you must check your state’s HR laws. Office surveillance can serve two very important functions. Cameras should be placed in very prominent locations – employees should know they are being filmed. You must also ensure that surveillance is not used in a discriminatory manner but equally applied to all employees.
Drug Testing
Routine or focused drug testing of employees is typically regulated by State law and many states have specific and often extensive regulations in this area. In the absence of State specific laws, employers should exercise extreme caution in mandating drug or alcohol testing. Testing protocols should be stated in the Employee Manual. Any call for testing should be uniform for the staff or based on strong if not unequivocal evidence of abuse. A 2019 OSHA ruling stated that required drug testing of an existing employee involved in an accident is not allowed unless there is reasonable evidence that drug use was involved in the accident.
Employee Searches
PCS has encountered many offices where the employer wants to maintain rights to search employee property. This can include desks, backpacks, purses, and even their automobile. It can also include the search of digital media on both office and personal media devices. The legality of this practice is often regulated by State law but there are overlying Federal principles. Employers should strongly consider the intent or need for such policies before attempting to enforce them. Exactly what are you looking for? If weapons, do they have the right to bear them already or do you have reason to believe they pose harm to your patients or other employees? If drugs, again do they have the right to have them by law or prescription, and or do you have some reason (in this case, evidence) that the employee is engaging in some illegal drug activity? Do you believe the employee is stealing from the practice and even if you do have good reason to believe this, is it your position to police this action?
In general, employee search policies are not warranted and, in many cases, not legal. At a minimum, they set a very bad tone for a productive and trusting employer/employee relationship. If you insist on including such policies, it is strongly recommended that any search activity will only be initiated based on strong evidence that the employee is engaged in unlawful activity.
Immediate Dismissal
While PCS generally recommends a progressive discipline approach to dealing with employee misconduct, abuse of drugs or alcohol while on the job is an immediately fire-able offense. In the absence of clear evidence of substance abuse, consider the normal
Progressive Discipline
You cannot have progressive discipline without clear performance and behavior expectations specified in your employee manual. Policies must be in place that establish the manner in which employee counseling for unacceptable behavior is conducted. Policy must also be in place to establish the expected level of action or discipline that may be associated with unacceptable behaviors. In most cases, actions for specific behavior can have a range of negative actions based on severity of the situation or how often the problem has occurred. In other cases, certain actions or behaviors must have a “zero tolerance” policy. These can include willful abuse of a patient, willful HIPAA privacy or security violations, the conduct of a felony, substance abuse on the job, embezzlement, and other similar actions with severe impact on a patient or the practice.
Problems related to lack of documented progressive action by the employer is one of the most common HR calls received at PCS. Simply put, it is essential for an employer to have any chance of winning unemployment claims or potentially even wrongful termination suits.
The Normal Termination Process
Before making a decision to terminate an employee, every employer should ask themselves the following questions.
- Is the action based on documented employment policy?
- Is the action consistent with past actions taken for similar circumstances?
- Will the employee be surprised by this action – if so, review prior counseling and progressive discipline actions.
- Has the employee been given a chance to “tell their side of the story”?
- Is the action completely free of bias or any degree of bias or discrimination?
- Is the employee in a protected class?
- If the action is in any way not routine, have outside HR consultants or legal counsel been requested?
- If the reason for the termination involves legal misconduct, have the property authorities or regulatory boards been notified?
- Are you prepared to provide the employee with whatever benefits they are entitled to based on individual State law?
- Use your instinct and gut – does your action feel right?
The Importance of an Employee Manual
Your employee manual or office policy manual protects your practice and sets clear guidelines for your employees. Policies should be clearly stated in the Employment Manual and applied consistently to all employees. Management should always follow the policy set forth in the policy manual. Also remember that if you make significant changes to your employee manual, your employees should be notified and agree by signature.
